In the aftermath of the 9/11 events in the United States and the subsequent activity of Al-Qaeda, the United Kingdom being the US ally announced to the Council of Europe the declaration of the state of emergency. This state of emergency involved amendments to the national anti-terrorism act allowing detention of foreign individuals suspected in relation to terrorism in cases where deportation from the UK is intended but where such deportation for the time being is not possible. The 11 applicants were foreign nationals who were detained under the mentioned law because they were suspected to be international terrorists. It was considered by the British authorities that these individuals could not be deported because they risked ill-treatment in their country of origin, therefore they remained detained for a prolonged period of time. Each applicant appealed against the decision to detain them. The State institution which reviewed the decisions used a procedure which enabled it to consider both - evidence which could be made public and evidence which could not be disclosed for the reasons of national security. The detainees and their legal representatives were introduced with the former. The latter evidence was disclosed only to a special advocate who could comment on them in the special closed hearings concluded by the State institution. The said State institution dismissed all the appeals.
The applicants complained that the procedure before the responsible state institution was unfair because the evidence against them was not fully disclosed to them.
The Court reiterated that when reviewing the lawfulness of any kind of detention the proceedings have to be as much as possible compatible with the rights to a fair trial guaranteed in Article 6 of the Convention. At least, the proceedings must be adversarial and must always ensure equality of arms between the parties; oral hearing may be necessary. The detainees must be able effectively to challenge the basis of the allegations against them. This may involve calling pertinent witnesses and allowing the detainee and his or her representative access to the documents which form the basis of his/her detention. However, there may always be balanced restrictions on fully adversarial proceedings where compelling countervailing interests such as state security so require.
In the present case:
In the present case, keeping the sources secret for the national security reasons had to be balanced against the applicants’ right to procedural fairness in their proceedings.
The Court accepted that the pertinent state institution was a fully independent court and there was nothing indicates that excessive and unjustified secrecy had been employed in the proceedings or that there had not been compelling reasons for the lack of disclosure in each case.
The open material against five of the applicants had included allegations that were sufficiently detailed to permit an effective challenge of the detention by the applicants. The procedural requirement was thus satisfied in their case. However, the Court found that the open evidence in the cases of the remaining applicants was insufficient to permit an effective challenge of their respective detentions. Thus the Court found a violation of Article 5(4) in respect of these applicants.